Prostitution laws not at immediate risk

On September 28, 2010 an Ontario Superior Court judge declared criminal laws against operating or working in a brothel, communicating for the purpose of prostitution and living off the avails of prostitution, were unconstitutional. She ruled the laws put the safety of prostitutes at risk and contravened the Charter of Rights and Freedoms. Her declaration of constitutional invalidity was stayed for two months and earlier this week the Crown argued in the Court of Appeal that the stay should be extended until the decision is reviewed by an appeal court. The Court of Appeal’s decision is expected any day.

The Federal Crown argued that the continued stay was necessary and suggested "irreparable harm" would occur unless the stay was continued. The Crown suggested a failure to continue the stay could turn Ontario into a "social experiment unprecedented in this country," where pimps freely rule prostitutes, children are exploited in brothels and police are powerless to eradicate the sex-trade.

The argument was apocalyptic in nature – but what effect does the declaration of constitutional invalidity have? What will be the effect if the declaration is not stayed?

Surprisingly little.

Canada has an oddly structured criminal court system. Because of the federal structure of Canada there are two separate but, within their jurisdictions, equal courts – one is appointed provincially and the other federally. Both courts can hear criminal trials and their jurisdictions overlap so that prostitution related offences can be tried in both courts. While judges of the federally appointed court sometimes sit in appeal from the provincial court, when the decision made is one of first instance (that is a trial decision), the courts have coordinate jurisdiction. Trial decisions of a federally appointed judge do not bind other judges. As a practice, decisions of first instance, while not binding on other trial level courts, will be followed in the absence of good reason to the contrary.

In the September decision the Superior Court judge was sitting as a judge of first instance. Accordingly the September decision, while it must be considered, is not binding on any other trial level judge. Moreover the decision is problematic. The judge’s ruling hinges on the highly arguable premise that the legislation "force[s] prostitutes to choose between their liberty interest and their right to security of the person," and thereby presumes a liberty interest in engaging in prostitution. Such presumption seems unfounded and other trial level judges may well decline to follow the reasoning.

In any event, the stay of the declaration of constitutional invalidity does not affect the precedential value of the September decision. Most cases where constitutional arguments are made are ordinary criminal trials. So, someone charged with, say, communicating for the purpose of prostitution, would argue, as a defence, that the offence ought not to be considered as it violates the constitution. In such cases the accused, if successful, is acquitted. Other judges then consider the reasoning of the judge who acquitted the accused and if they find that reasoning persuasive, acquit others charged with the same offence. In the September decision the finding of constitutional invalidity arose in the absence of specific criminal charges. As a result the Court granted a declaration – but the stay of the declaration does nothing to affect the reasoning of the Court. Put otherwise, stayed or not, the September decision has precisely the same precedential effect.

There is no question but that the September decision has led to widespread confusion. Many people have the impression that streetwalking and brothels have been legalized. Police are hesitant to lay charges that may be unconstitutional. An appeal decision, as opposed to a decision at first instance, will bind all the trial courts of Ontario. Regardless of the merits of the September decision it is important that an appeal court rule on it quickly. The Crown must proceed as quickly as possible to resolve the issue.